Chief Justice Warren E. Burger: We will hear arguments next in No. 63, National Labor Relations Board against the Plasters’ Union, No. 65, Texas State Tile & Terrazzo Company against the Plasters’ Union.

Mr. Come you may proceed whenever you are ready.

Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the Court of Appeals for the District of Columbia Circuit and it presents a question involving the interpretation of the jurisdictional dispute provisions of the National Labor Relations Act.

Now, Section 8 (b) (4) (D) of the National Labor Relations Act, which is set out at page 3 of governments brief, makes it an unfair labor practice for a labor organization to strike or threaten to strike an employer for an object of forcing him to assign work to employees in a particular order labor organization or on a particular trade craft or class rather into employees in another labor organization or in another trade craft or class.

Now, Section 10 (k) of the Act provides that whenever it is charged that any person has engaged in an unfair labor practice within the meaning of Section 8 (b) (4) (D), the board instead of immediately proceeding in the regular complaint of unfair labor practice fashion that it does with other unfair labor practice charges hold that unfair 8 (b) (4) (D) charge in abeyance because 10 (k) states that the board is empowered and directed to hear and determine to dispute out of which such unfair labor practice shall have arisen unless parties to such dispute, submit to the board, satisfactory evidence that they have adjusted or agreed upon methods for the voluntary adjustment of the dispute.

Now, a board sense 10 (k) was added to the Act in 1947.

As interpreted the phrase, “A party to such dispute to include not only the competing Unions, but also the employer who made the work assignment.”

Hence, unless all three parties have agreed upon methods for the voluntary adjustment under the dispute, the board itself must determine the dispute under Section 10 (k).

The Court below via a divided vote held that the parties to such dispute means only the competing unions and thus, since they but not the employers were bound by a voluntary method of the adjustment.

The board had no power to re-determine the dispute under Section 10 (k) and correctness of this interpretation is the issue that we have here.

Now, the underlying facts are briefly these.

A Plasters’ Union picketed two different jobs in furtherance of its demand that the work of applying a code of Portland cement mortar to the walls, upon which tile was to be thereafter installed should be assigned to employees represented by the Plasters rather than to those represented by the Tile Setters Union.

The first job involved, in addition to our library at University of Houston.

The general contractor of Southwestern had sub-contracted the, a Tile job to Texas State, a tile contractor employing the members of the Tile Setters Union and it sub-contracted the job of installing the tile.

The Plasters claimed the mortar work as theirs and when that claim was rejected by Texas State, the sub-contractor, they submitted the dispute to the National Joint Board for the Settlement of Jurisdictional Disputes, a tribunal to establish by the Building Trades Department of the AFL-CIO and certain employer groups.

Both Unions by virtue of their affiliation with Internationals who are members of the Building Trades Department are bound by decisions of the Joint Board.

But neither Texas State; the sub-contractor, nor the Association, to which it belonged, had agreed to be bound by the decisions of the Joint Board.

The Joint Board awarded the disputed work to the Plasters finding that the matter was governed by a 1917 agreement, between the two International Unions and a 1924 decision interpreting that agreement.

Parenthetically, I might point out at this point that the whole dispute arose because of the development of a new bonding agents that were not discovered until 1950, but nonetheless the Joint Board awarded this work to the Plasters based on the 1917 agreement.

When Texas State refused to change its work assignment in accordance with the Joint Board award, Plasters commenced picketing at the job site to force such a change.

Southwestern the general contractor filed charges with the board alleging that the picketing violated Section 8 (b) (4) (D) for the Act.

The second job involved the re-modeling of the Rainbow Bakery.

There Martini, a tile contractor under contract with the Tile Setters Union was assigned the job of a installing the tiles.

The Plasters are claiming the work, began picketing.

Again Martini was not bound by the procedures of the Joint Board and accordingly, it filed unfair labor practice charges with the board.

The Board's Regional Director finding a reasonable cause to believe that the charges had merit and finding that neither of the employers here at Texas State or Martini were bound by a voluntary method of adjustment proceeded to a 10 (k) hearing, at which all the competing Unions and the employers involved presented argument and evidence.

It was a seven-day hearing in support of their respective positions.

The board on a basis of the records thus developed and in conformity with this Court’s decision in CBS which directed the board to consider all relevant factors and determining the jurisdictional disputes, so the board considered the collective bargaining agreements between the parties, employer area and industry practice, relevant skills and efficiency of operation, agreements between the two Unions and the Joint Board award on the basis of -- after considering all of these factors and the evidence adduced, the board concluded that employees represented by the Tile Setters rather than those represented by the Plasters were entitled for the work in dispute.

In short, it came out differently than the Joint Board had, which had awarded the work to the Plasters.

When the Plasters refused to comply with the board's determination of the work dispute, the Board’s General Counsel at that point issued the complaint upon the 8 (b) (4) (D) charge which had been held in abeyance in the expectation that the Section 10 (k) determination would have to settled the matter.

It did not and under the scheme of the statutes you pick up the unfair labor practice into the case again, complaint issued, it went to the board, the board concluded that the picketing by the Plasters violated Section 8 (b) (4) (D) and it issued a cease and desist order, requiring the Plasters to cease this activity and to post appropriate notices.

As indicated earlier, the Court below refused to enforce the boards order on the ground that the board had no power to re-determine the dispute.

Now, as I indicated at the outset, the abstention clause in Section 10 (k) comes into play when the parties to such dispute, submit to the board, satisfactory evidence that they have adjusted or agreed upon methods were voluntary adjustment of the dispute.

Now, Congress did not define who the parties to the dispute were and it did not indicate whether dispute means, the underlying jurisdictional dispute or it means the dispute and the jurisdictional does a strike which has emanated from the dispute.

The Court below construed the term such dispute to mean merely the basic work controversy and it concluded that only the two Unions were parties to that dispute because in the words of the Court below, the employer in a jurisdictional dispute is a neutral caught in the crossfire between the disputing Unions, and unable to satisfy either.

He cares not how the dispute is decided, but once merely that it be decided.

Now, we submit that therein lies the fundamental error in the Court’s reasoning, namely that the employer is necessarily a neutral party to a jurisdictional dispute.

Justice Potter Stewart: What is the language you just quoted, you are putting from what, the CBS opinion in this Court or the Court of Appeals opinion in this case?

Mr. Norton J. Come: I am quoting from the Court of Appeals opinion, Justice Stewart at record 375.

Chief Justice Warren E. Burger: That is attached to your brief too, is it not, in the appendix?

Mr. Norton J. Come: It is in the yellow of the above appendix, 375.

Justice Potter Stewart: The Court was relying on --

Mr. Norton J. Come: The court was --

Justice Potter Stewart: Dictum in this Court in the CBS case?

Mr. Norton J. Come: Yes, Your Honor.

It purported to find support for its position in this Court's opinion in CBS, where this Court did refer to a jurisdictional dispute as a dispute between two Unions, but we submit that no one would quarrel with that characterization as a general proposition.

The issue in CBS was not this issue.

This Court had no occasion to reach it because in CBS, none of the parties were bound by a voluntary method of adjustment.

The only question was conceding that the board had power under Section 10 (k), did it properly exercise that power when that merely rubber stamped the employer's work assignment and did not undertake to consider all the other relevant factors like in the (Inaudible) and in this Court had said that the board had to determine the dispute in the conventional way that an arbitrator would by considering all the factors and the board certainly complied with that obligation here.

Now, furthermore, in CBS, you had a somewhat a typical situation in that the employer there, employed both groups of employees.

He employed state unions and he employed the technicians.

In that sense, in that kind of a situation, perhaps more so than in others, he is relatively indifferent as to which group does the work.

It is not the typical case nor is in the situation here.

In the typical case which is typified by the situation in the building contraction industry, the employer's economic interest will be directly affected by the assignment of work and thus in no meaningful sense and he said to be a neutral or indifferent as to its outcome.

Indeed, John Dunlap, the first Chairman of the Joint Board has stated in a passage that we quote in our brief, the fact that some unions work exclusively as a matter of policy or custom for particular contractors factors tends to convert competition among contractors also into jurisdictional disputes between Unions, where apparently the dispute is between a contractor and a Union on one side against another contractor and Union on the other and this is certainly what we had in this case.

Indeed in recognition of the employer's interest, the National Joint Board from its inception has included the employer groups in its structure and is operated under the explicit principle that an employer is not bound by its procedures unless he has specifically so agreed.

Turning to the facts here, neither Texas State nor Martini has a collective bargaining agreement with the Plasters’ Union, and both had one with the Tile Setters Union.

Neither employed Plasters and a word of work to Plasters, would have required this contractors either to hire a new complement of employees whom they believe were less skillful and who is rates were higher than those of Tile Setters or to give up their sub-contracts.

In these circumstances, it can hardly be said that Texas State or a Martini or a neutral as to how the work assignment dispute was resolved.

Now, the Court below supported its reading of the statute by relying on the fact that the employer is not bound by a Section 10 (k) determination of a board, although, he is not a party.

Now, we submit in the first place that this fact does not lessen the employer’s direct interest in the resolution of dispute and relegate him to the status of a neutral; here is not how it is decided.

Furthermore, a Section 10 (k) determination in favor of the striking Union is enforcible against the employer in the sense that the Union is free to bring strike pressure against him because there is an unless clause in Section 8 (b) (4) (D), that accepts from the bond of 8 (b) (4) (D), a situation strike where the employer is failing to conform to an order or certification of the board.

So that if the striking Union prevails in a 10 (k) determination and the employer does not comply with the award and reassign the work to it, it is free to bring economic pressure on the employer.

So that in a very real sense there is pressure on the employer here to comply with the 10 (k) award.

As a matter of fact, nobody is really found in a technical sense by a 10 (k) award because even the winning Union does not get the work in the sense that the 10 (k) determination requires the employer to change his assignment.

All that it does is to give them a right to bring economic pressure as I have indicated.

Now, the third support for the principle support for the Court below decision --

Justice Byron R. White: What does a 10 (k) order say by the way?

I mean, what does a typical one say?

It is phrase in terms of designating the bargain representative for the particular work assignment?

Mr. Norton J. Come: No, let us look at the one here which is set forth on the page 54 of the appendix and the board says, “Para layers employed by Texas States and Martini Tile who are represented by the Tile Setters are entitled to perform the work of applying the coat of Portland cement.

Plasters Local is not entitled by means prescribed by Section 8 (b) (4) (D) to force a require.”

Justice Byron R. White: Was that the kind of an order that the unless clause (D) talks about?

It talks about an order determining the bargaining representative for employees performing such work, is that a 10 (k) order?

Mr. Norton J. Come: Yes, the board -- the general counsel and the board have so interpreted that as applying to a --

Justice Byron R. White: To a 10 (k) order?

Mr. Norton J. Come: To a 10 (k) order, yes Your Honor.

Justice Byron R. White: Because they are really saying that here is some work to be done and the bargaining representative for that work is a certain Union?

Is that what a 10 (k) order says?

Mr. Norton J. Come: Well, a 10 (k) order does not run to a particular Union because otherwise you get into trouble with the 8 (b) (2) and 8 (a) (3), Your Honor.

It goes to employees of the craft who maybe represented by the particular Union.

It does not run to the particular Union as such --

Justice Byron R. White: There is nobody in this case disputes that, that unless clause indeed refers to a 10 (k) --

Mr. Norton J. Come: Not to my knowledge.

Unknown Speaker: Mr. Come?

Mr. Norton J. Come: Yes sir.

Unknown Speaker: In the 10 (k) proceeding --

Mr. Norton J. Come: Yes sir.

Unknown Speaker: The employers were what -- parties made such by board (Inaudible)?

Mr. Norton J. Come: They were parties of by the board.

Unknown Speaker: And yet, there is no order and it goes against to the Union?

Mr. Norton J. Come: No, Your Honor because the nature of the 10 (k) proceeding is that, it does not even go against the Union.

All it does is to make a declaration of who is entitled to the work and who is not entitled to strike the work.

Unknown Speaker: And so, why is that the -- I gather the board, it is almost made the employers situation a party of that proceeding --

Mr. Norton J. Come: Yes, Your Honor.

Unknown Speaker: Of by force of what?

Justice Byron R. White: Is it the employer that starts the -- he has to file a complaint before 10 (k) is triggered, does he not?

Mr. Norton J. Come: Generally, the employer has been the charging party.

He does not have to be --

Justice Byron R. White: (Inaudible)

Mr. Norton J. Come: A charge maybe filed by any person.

Justice Byron R. White: Here it was the employer.

Mr. Norton J. Come: And here it was the employer and I would say all 90% of the case, it is the employer.

Justice William J. Brennan: But I gather even if the employer was not to charge the party, the employer is made a party by force?

Mr. Norton J. Come: That is correct and at that flows from the general provision of the board's rules which refers that, which defines party as a generally anyone who has an interest in the proceeding.

So that the board has from the beginning, treated the employer as a party to a --

Justice William J. Brennan: But it is not but no case is the order (inaudible) from the one that presented this case?

Mr. Norton J. Come: That is correct Your Honor.

Justice William J. Brennan: Specifically, that is under the employees of the employers and (Inaudible)?

Mr. Norton J. Come: Yes, Your Honor.

Justice Harry A. Blackmun: Mr. Come, may I interrupt (Inaudible)?

Mr. Norton J. Come: Yes.

Justice Harry A. Blackmun: I know titles have very little significance, but the 10 (k) title is hearing on jurisdictional strikes, there was never a strike here, was there?

Mr. Norton J. Come: There was, Your Honor, in the sense that the picketing is regarded as a strike.

You had picketing by the Plasters in both cases to change the -- to get to work and that would be deemed a strike.

As a matter of fact, the operative part of 8 (b) (4) (D) says, unfair to engage or induce or encourage any individual to engage in a strike or refuse on the course of this employment, the working line any goods and the it --

Justice Harry A. Blackmun: In any event, you read no restrict the influence into the title?

Mr. Norton J. Come: No, Your Honor because I think that in the labor parlance strike and picketing are pretty synonymous.

Now, I was just going to say that the conclusion that the Court below found a support for its position in the legislative history of 8 (b) (4) (D) and 10 (k).

Unknown Speaker: Let us talk about it.

Mr. Norton J. Come: Yes.

Unknown Speaker: How long that the board could (Inaudible)?

Mr. Norton J. Come: Since, 10 (k) was added with the statute in 1947.

Unknown Speaker: What was the first case?

Mr. Norton J. Come: The first case is a case called Westinghouse --

Unknown Speaker: What year?

Mr. Norton J. Come: That was 1949, 83 NLRB 477.

Unknown Speaker: Was that in 1940?

Mr. Norton J. Come: In 1949.

Unknown Speaker: (Inaudible)

Mr. Norton J. Come: Yes, Your Honor, we have listed the -- some of the cases in footnote 6 at page 15 of our brief.

The Court below, as I indicated found support for its position in the legislative history of 8 (b) (4) (D) and 10 (k).

We submit that its reliance is misplaced because as judge Mackinnon pointed out in his dissent in the Court below, Congress really did not focus upon this particular problem in the legislative history.

We will find statements in the legislative history describing a jurisdictional dispute as a dispute between two Unions which is a truism that nobody would seriously quarrel with.

They have their origin in a dispute between two Unions or between two employee groups, but it does not follow that the employer has no interest certainly where as must be the case before the board can get into the Act he has been implicated by a strike or a strike threat.

Secondly, the Court relies on the fact that Senator Morse who proposed a 10 (k) provision which as he proposed that gave the board the alternative of either deciding dispute for itself or appointing, an arbitrator, which was taken out of conference indicated that he felt that this would be inducement to the Unions as it was in the war labor board days to settle the jurisdictional disputes themselves, as you had hanging over them, the club of government determination of the dispute.

Now, we submit there is nothing in consistent between desire to have the two unions and resolve it for themselves on the one hand and on the other saying that if they are not able to resolve it by themselves, a binding of final determination cannot count if it excludes the employer which is the problem that we have here.

Thank you, Your Honors.

Chief Justice Warren E. Burger: (Inaudible)

Argument of Wayne S. Bishop

Mr. Wayne S. Bishop: Mr. Chief Justice and may it please the Court.

In the few minutes that I have here, I would like to emphasize two points of statutory language which I think are relevant to the support for the determination of the board here.

As Mr. Come indicated in his argument, the real question here in terms of statutory language is what did Congress mean by who are the parties to the dispute which the unfair legal practice arouse.

It is our intention that this dispute must have arisen out of the union’s disagreement with the employer's work assignment, not just the union’s disagreement with another union over who is entitled to claim this work.

I think this can be illustrated by the facts in this case, in the appendix on pages 17 to 19, as factual sequence have indicated.

The factual circumstance was that the Respondent Union, the Plasters' representative sought and demanded the work in dispute here in a series of meetings over several months, after the employer had indicated that he would assign the work to the Tile Setters.

The Tile Setters were the employees of this employer who were members of the Tile Setter Union.

The employer had no contract with the Plasters.

There was no picketing over this several months, while the parties discussed this.

Justice Byron R. White: (Inaudible) to no unfair labor practice complaint to be filed and no 10 (k) proceeding could be started?

Mr. Wayne S. Bishop: That is right.

Not until the picketing occurred and with regard to the question --

Justice Byron R. White: Let us assume the picketing does occur --

Mr. Wayne S. Bishop: Well --

Justice Byron R. White: And the --

Mr. Wayne S. Bishop: I think the question is why does a picketing start?

That explains who dispute is really with?

The picketing starts because the employer has given indication to the union or the union has some reason to believe that the dispute or that the employer is going to assign the work in question to the other union and that --

Unknown Speaker: Even is that going to assign for the picketing of the employees representative?

Mr. Wayne S. Bishop: I think that -- that is right?

Justice Byron R. White: But if before the employer gets to the board with a complaint, the picketing ceases although the dispute has not ceased, there can be no 10 (k) proceeding?

Mr. Wayne S. Bishop: If there is no active picketing, I do not see how before the charge is filed.

Justice Byron R. White: Let us assume there is picketing and a complaint is filed and a 10 (k) procedure is starting and then picketing then it ceases?

Mr. Wayne S. Bishop: I think it would depend upon what circumstances that the picketing ceases.

I think what --

Justice Byron R. White: Now, the parties say that there is no unfair labor practice is going on and it cannot be any 10 (k) procedure and the union say that?

Mr. Wayne S. Bishop: I think that the -- if the unions at that point indicate that there are -- they have settled the dispute, if one union issues indication that it has disclaimed any interest in the work, then the board under its safe way doctrine will not hold the 10 (k) --

Justice Byron R. White: So that -- even though the employer object.

Let us assume the --

Mr. Wayne S. Bishop: I think there has to be a disclaimer at that point.

Justice Byron R. White: Well, one union disclaims it but the employer says, I am sorry.

The disclaiming union is the union; I want to do the work.

Mr. Wayne S. Bishop: Right, if that --

Justice Byron R. White: Let us assume the Tile Setters in this case have disclaimed.

Mr. Wayne S. Bishop: That the Tile Setters do disclaim --

Justice Byron R. White: And the employer says I do not want the Plasters.

Mr. Wayne S. Bishop: Then the board --

Justice Byron R. White: I want the Tile setters --

Mr. Wayne S. Bishop: Then the board dismisses the 8 (b) (4) (D).

Justice Byron R. White: Well, then how could it mean that the party says that?

Mr. Wayne S. Bishop: Because the --

Justice Byron R. White: Includes the employer?

Mr. Wayne S. Bishop: Well, there is a -- there an indication to the statutorily language under 8 (b) (4) (D) that Congress intended under the similar circumstances that there would still be an 8 (b) (4) (D), that is by the change in the language and 8 (b) (4) (D) where under the Senate bill as originally passed, the Senate pass language that said the dispute over the work assignment has to be between the two unions involved and conferences was changed to make it broader than the two unions involved but also the none union employees of the employer.

Under that --

Justice Byron R. White: I suppose if one union disclaims it, what that really means is that it is refusing to do the work?

Mr. Wayne S. Bishop: That was -- it really means this --

Justice Byron R. White: So why would the board ever dismiss it?

Mr. Wayne S. Bishop: It really means that there is no active jurisdictional dispute because --

Justice Byron R. White: Well, there is.

The employer wants the Tile Setters to do and the Tile Setters refuse to do it?

Mr. Wayne S. Bishop: But the --

Justice Byron R. White: Why do you -- why do you think it does?

Mr. Wayne S. Bishop: There really is -- the employer under that circumstance has option of assigning to someone else.

He is not forced to assign it to the picketing union.

He may assign to his, to other, his own employees.

But the absence of two -- the absence of a claim under that circumstance means no 8 (b) (4) (D).

What would happen if the employer does not want the Plasters to do the work?

Justice Byron R. White: You think that is the relevant in how you define parties that under --

Mr. Wayne S. Bishop: Well, I think not because I think what happens is the employer assigned to work to whomever he wishes at that time, the Plasters then comes back again.

Justice Byron R. White: Well, then it is just a question of the way the union, how the procedure then for the union.

I mean, instead of coming up on these facts, the unions can always abort the 10 (k) by one disclaiming it, they really settled the dispute.

All they have to do is that one more step to their settlement.

Namely a disclaim.

In this case it has no importance as else where.

Chief Justice Warren E. Burger: That simply means there is no dispute existed?

Mr. Wayne S. Bishop: That is right.

There is no reason to file an 8 (b) (4) (D) at that stage.

There is a -- there is no dispute --

Justice Byron R. White: That is filed, it is been filed and the --

Mr. Wayne S. Bishop: What?

Justice Byron R. White: And the employer says the dispute is not settled.

I do not want the Tile Setters.

I want the Tile Setters not the Plasters.

Mr. Wayne S. Bishop: But if the Tile Setters do not want the work, I think there is no basis under which Congress or board could force the Tile Setters to take that work.

It is the employer's option.

He may assign it to another group, the Plasters comes back and pickets at that time, this group does not complain, we have our 8 (b) (4) (D) and our 10 (k) determination.

Justice Byron R. White: Well, the power to move the 10 (k) proceeding is in the two unions?

Mr. Wayne S. Bishop: There is a power to -- can move to the 8 (b) (4) (D) also, but it does not move it in terms of the employer ultimately.

The employer can still assign the work according to his choice and we then go back to the same proceeding again.

But the --

Chief Justice Warren E. Burger: Going back to this illustration, if the Tile Setters simply refuse to do the work by a disclaimer, is there any power in the Congress or the employer, anyone else to make them do this, have they?

Mr. Wayne S. Bishop: I think not.

I think this is with regard to the question that Justice Brennan asked earlier.

Chief Justice Warren E. Burger: Then your dispute has evaporated?

Mr. Wayne S. Bishop: I would, could agree Mr. Chief Justice and I think the --

Justice Byron R. White: Could he fire them for refusing to do the work?

Mr. Wayne S. Bishop: If they are employees of his, I think, he possibly good as long as there is some discriminatory motive or anti-Union discriminatory motive, I think that would be a basis under which he could discharge employees of failing to carry out the work assignment because they then --

Unknown Speaker: Anyway then, did you agree that do you have power (Inaudible)?

Mr. Wayne S. Bishop: I agree with the board's Safeway doctrine, but I do not think it is entirely controlling in the circumstances that here.

I think the language 8 (b) (4) (D) shows this because Senator Kemp in the conference agreement, he explained to the rest of the senate, rest of the senate that the intention in changing the language of 8 (b) (4) (D) was to permit the same statutory protection where an employer assigned work to his own non-union employees as when there was a two union dispute over the work.

Under the circumstance, it seems quite indicative that Congress meant that, that would be a dispute, essentially between the union and the employer.

It is not into union’s dispute, so there are not two quarreling unions under that circumstance.

The Congress must admit under that circumstance that the board to be a party to a 10 (k) hearing because a 10 (k) hearing would not have much relevance to a reasonable determination.

If only the one union was there presenting their position, the unrepresented or non-Union employees had ever power under their own resources, is to represent themselves.

The employer would be the party there in the 10 (k) hearing, representing the work assignment.

We think this is very strong indication of intent on the part of Congress to make the party -- the employer party to the dispute.

I would like to make one comment with regard to the question that Justice Brennan was asking about with regard to the board not binding the employer in the 10 (k) award.

I think this ties in entirely, with intra scope of the Act, whereby Congress has intentionally kept the NLRB and the government out of the substantive terms and conditions of employment.

I think this is further indication what Congress did in 10 (k) that they could have given the board authority to issue a 10 (k) order which would have bound the employer and the union.

That would have made a compulsory arbitration of determination, but Congress decided not to do that and it bound neither of the party.

All it did was restrict what circumstance you could have overlook -- to picket over this and this ties in entirely with Congress' entire approach to the Act of --

Unknown Speaker: What if (Inaudible) issue before us as I understand is whether in the board should have abstain when there is --

Mr. Wayne S. Bishop: That is right!

Unknown Speaker: So the question let me just apply to you.

I suppose do not go with that, actually whether or not the proceeding is important, whether or not it has to whatever the case maybe, the issue we have to decide is whether the (Inaudible) initiating the proceeding in the first instance?

Mr. Wayne S. Bishop: Within the labor board in --

Unknown Speaker: That is right.

Mr. Wayne S. Bishop: Yes!

Justice Byron R. White: What if the union would set exactly could be in that set and also said that they have union with the client (Inaudible)

Mr. Wayne S. Bishop: That is an order 8 (b) (4) (D) charge.

In that regard, Justice White, I think it is important to some of the cases that are cited in the --

Justice Byron R. White: Whatever done is one of the unions to if they could be really settled the dispute to also define -- why would the union to gets doom then fell over operative, always be willing to define if there is a Federal.

Mr. Wayne S. Bishop: Through the Joint Board procedures.

Justice Byron R. White: If they are bound by that, there is nothing we can do about it, and maybe agreed to it and it is really set.

I would allow if ever gone with the union with the (Inaudible)?

Mr. Wayne S. Bishop: If they disclaim the work and the work is assign to the other union, you said the losing union, under a 10 (k)?

Justice Byron R. White: No, I said the settlement could union, the union could settle their between themselves, so could get something to work, alright?

Well, the union who is at work where I would think it would always be willing the disclaim.

And a board any of possibility of (Inaudible)?

Mr. Wayne S. Bishop: Well, the union who a did not get the work under that circumstance, if he does not adhere to their settlement for reasons of his own, then has the opportunity if the case does go to the NLRB of having the board decide that he is entitled to the work.

Justice William J. Brennan: (Inaudible)

Mr. Wayne S. Bishop: It has not been ultimately settled, right there.

I think that is more a problem of a voluntary settlement procedure, having provisions for enforcement of their decisions, among those parties.

It does not really relate to the board.

Justice William J. Brennan: I do not know (Inaudible) Whatever maybe the case it was settled I do not know what we have here -- what we have here is whether the board (Inaudible) proceeding, and facts of this case so whether the extension clause.

Mr. Wayne S. Bishop: I am sorry.

Justice William J. Brennan: Because it is forward for to move it that only has.

Mr. Wayne S. Bishop: Yes, I am sorry Mr. Justice Brennan.

I thought I had done, that I have no quarrel with the Safeway decision, at all.

I think it is in the absence of active claims for the work.

The board does not proceed on an 8 (b) (4) (D) or 10 (k) charge.

Justice Harry A. Blackmun: In this connection, Mr. Bishop, what was the practical result as to this job in Houston with these jobs?

Who did the work done (Inaudible)?

Mr. Wayne S. Bishop: The practical result was that the Tile Setters, who were the employers represented by the Tile Setters did the work.

They were the employees of the contractor, and they received the assignment of the NLRB.

Justice Harry A. Blackmun: Well, does this tie-in with Justice White's comment then that there really was not a settlement between the two unions?

Mr. Wayne S. Bishop: There was not a binding settlement between the two unions.

Mr. Wayne S. Bishop: The Joint Board issued its determination, but one of the unions did not follow the Joint Board determination.

My time is expired.

Chief Justice Warren E. Burger: Thank you Mr. Bishop.

Mr. Capuano?

Argument of Donald J. Capuano

Mr. Donald J. Capuano: Mr. Chief Justice and may it please the Court.

The board, in its argument arrived to conclusion, mentioned in answer to a question that 23 years of NLRB precedent, which is involved in this case.

It is certainly true that this decision or the board’s position in this issue has been followed for 23 years.

However, I think it is fair to state that there is more reasoned analysis in the decision of the Court of Appeals, which is on review here than there is in the sum total of every case, the NLRB has decided on this issue, in 23 years.

The NLRB simply has refused to analyze its position, the legislative history, this Court's decision in CBS, simply as what the petitioner states in his brief, couches its decisions in statutory terms always denying the voluntary adjustment procedure, any credibility when the two unions or two labor groups are bound.

Chief Justice Warren E. Burger: Well is it not correct that the Courts have historically allowed the board that is presumed of expert experience, wide latitude in dealing with the practical aspects of these things?

Mr. Donald J. Capuano: I think Mr. Chief Justice, the Courts have allowed the board wide latitude in dealing with practicalities but I think what we are dealing with here is policy, a policy that Congress set down in Section 10 (k) and therefore, the board does not have the latitude it would, if it was simply applying a mechanical doctrine.

Chief Justice Warren E. Burger: Well, as a practical then I take it you disagree with the statement of the Court of Appeals, that the employer is just an innocent bystander who does not care one way or the other, about the outcome of the jurisdictional dispute?

Mr. Donald J. Capuano: No, I agree with that statement because I believe, what Judge Leventhal was stating there, is what the legislative history reflects and that is, that this section of the Act and as this Court has said, in fact, the whole dominant theme throughout Section 8(b), 8 (b) (4) is to protect neutral employers.

Just last term, as a matter of fact, in the local 825 Operating Engineers case at 400 U.S., this Court again reiterate it, what it said in National Woodwork and we believe it was actually, affirming, re-affirming what it said in CBS.

The protection of this Section of the Act 10 (k) and 8 (b) (4) is to protect an employer's neutral interest.

Now, Judge Leventhal recognized, and we certainly have conceded in our brief that there are employers who have preferences.

Of course, there are, no one would deny that and Judge Leventhal recognized it, but the Act, this particular Section of the Act, for these two Sections were not designed to protect that preference.

They were only designed to protect the neutrality of that employer, when he is caught between the two warring unions.

Now, he may also have a preference, but he can support that preference, once the 10 (k) decision is decided where the two unions agree voluntarily, then one union goes back to deal with the employer and at that point under the whole structure of the Act, his economic interest can be protected by self help and we believe that is exactly what Judge Leventhal was saying and that is exactly the intent of the whole Act.

Justice Thurgood Marshall: But in this case, the Plasters were not working that at all?

Mr. Donald J. Capuano: Oh Yes, Justice Marshall, the Plasters were working there for a plastering contractor.

They are on that job, in fact --

Justice Thurgood Marshall: They are on that job?

Mr. Donald J. Capuano: They were the ones who put the scratch coat which is the preliminary coat on the wall at to which the Tile Setters came and put their float coat on.

Justice Thurgood Marshall: They were regular employees of the contractor?

Mr. Donald J. Capuano: Well, now, they were not regular employees of the Tile Setting contractor, they were regular employees of the Plastering contractor who also had a --

Justice Thurgood Marshall: (Voice Overlap)

Mr. Donald J. Capuano: Yes, who also had a sub --

Justice Thurgood Marshall: They were not employees of the Tile sub-contractor?

Mr. Donald J. Capuano: No sir.

That is correct!

Justice Thurgood Marshall: So, would not the sub-contractor have an interest in protecting his own employees?

Mr. Donald J. Capuano: Yes sir, he has --

Justice Thurgood Marshall: Then he is in outside the office?

Mr. Donald J. Capuano: He has the interest but Congress set --

Justice Thurgood Marshall: But it is not sufficient you say?

Mr. Donald J. Capuano: No, I say, the Congress said in the 10 (k) proceeding, that is not were his interest was going to be protected.

His interest was going to be protected after the two unions had settled between themselves, this dispute and then, one union would go back and deal with the employer.

I mean, his interest is being protected in this manner just as if his Tile Setters employees during the course of that job said they wanted 20 cents an hour more.

Justice Thurgood Marshall: Well, I just think realistically, that an employer would -- the last thing he would want would be one more union to deal with, am I right?

Mr. Donald J. Capuano: That may very well be the case, yes, but that is not the interest that Congress should be protected.

Justice Thurgood Marshall: Why?

Mr. Donald J. Capuano: Because you see Justice Marshall, if Congress had wanted to give him that sort of protection, they would have drafted 10 (k), so that he was bound by the decision.

As it stands now, under Section 10 (k), the employer can demand a board hearing, he can demand a board hearing, I mean, a board order which is going to bind the unions, but which then the employer can completely ignore.

Now, we think if Congress wanted to do which you suggested, they would have said, alright, Mr. Employer, you are now going to be bound by this 10 (k) award, but Congress was not about to adopt any form of compulsory arbitration binding the employer and the unions in the Act.

Now, we think that the language of Section 10 (k) supports our position very clearly.

The last sentence states, and we have quoted it in our brief on page 8, and our brief is the red one, “Upon compliance by the parties to the dispute with the decision of the board or upon such voluntary adjustment of the dispute such charge shall be dismissed.”

Well, as I just indicated, the employer does not have to be complying with the decision at all.

If the two unions involved comply the charge is going to be dismissed, the employer can go on making the assignment as he pleases.

Now, clearly, if the employer does not have to comply, certainly the words parties to the dispute in that last sentence cannot include the employer.

The first sentence also uses the same phrase, parties to such dispute.

Now, again, if in the last sentence, it means only the disputing unions are labor groups, we submit, it cannot mean anything differently in the first sentence, but more importantly, the first sentence with regard to the word dispute, states and we have this quoted at page 10 of our brief, “The board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.

Now, the board in its brief and argument, has said, well, the dispute there means the jurisdictional strike.

We submit the dispute cannot mean the jurisdictional strike.

That the jurisdictional strike is the unfair labor practice and if you made a substitution of terms in that very sentence, it would read that the board is empowered and directed to hear and determine the dispute out of which such strike arouse.

The strike is the unfair labor practice and I think a short analogy would be in a discriminatory discharge case, that is an unfair labor practice.

The discriminatory discharge itself is the unfair labor practice.

The unfair labor practice does not arise out of the discriminatory discharge and we simply cannot understand the basis of the board’s argument that the strike equals a dispute.

And we also believe that this Court, in CBS answered that question and in answering that question, it was a necessary predicate to the Court's decision in CBS because I think I should go back a little bit prior to CBS, to recall just what the board was doing.

For 13 years, the board, when it held the Section 10 (k) case, was simply determining the validity of the jurisdictional strike.

The board would state in its decision, whether the striking union was entitled to the work because of an outstanding board order, certification or collective bargaining agreement.

If it was not, then the employer's assignment was affirmed every time.

Therefore, the board was equating the dispute that it had to determine with the validity of a jurisdictional strike.

When the case came to this Court, Justice Black writing for the unanimous Court, very clearly and necessarily determined what the word dispute means in 10 (k) and if I make quote him and this is at the bottom of page 14 of our brief, “In the clause, the dispute out of which such unfair labor practice shall have arisen, can have no other meaning except a jurisdictional dispute under Section 8 (b) (4) (D) which is a dispute between two or more groups of employees over which is entitled to do certain work for an employer.

Now, we submit --

Chief Justice Warren E. Burger: It does not say that is the only thing it is.

That is a statement of obvious truth. Dispute is, what you have just read, but does not say that that is all it is and that is the only way you can have a dispute, does it?

Mr. Donald J. Capuano: I believe Mr. Chief Justice that the way that it is written, referring specifically to the clause in Section 10 (k) that he is clearly talking about the use of the term in 10 (k).

Now, of course in another situation not involved with 10 (k), dispute may mean something else, but this is why we believe that this question as to what dispute means in 10 (k) has been settled because the Court there was specifically referring to 10 (k).

With regard to the voluntary adjustment or abstention provision of 10 (k), this Court in CBS also made reference to it and explained that the Court -- the board in the case before the Court then, had to hold a 10 (k) hearing because, and I am paraphrasing the Court, because the two unions, the technicians and the state (Inaudible) were not able to settle their dispute.

The Court stated, and again this is quoted on page 14 of our brief, “Section 10 (k) offers strong inducements to quarreling unions to settle their differences by directing dismissal of unfair labor practice charges upon a voluntary adjustment of jurisdictional disputes.”

The Court of Appeals here recognized that once it had determined, what dispute is covered by Section 10 (k), the parties to the dispute for the purposes of the abstention provision necessarily means the two disputing labor groups are labor unions.

It can have no other meaning.

Now, we rely of course, as I have stated on CBS and we submit that this Court in CBS, relied upon the legislative history of this Act and the thrust of the Act.

The Court, went into the legislative history, read it thoroughly and while we do not think a reanalysis is necessary here, I think briefly, I would like to say a few words about the legislative history.

The House Bill, that was introduced in 1947, did not contain any provision similar to Section 10 (k).

Section 10 (k) was introduced in the Senate by Senator Morse.

Unfortunately in this particular situation, we have a very clear statement as to where the idea for Section 10 (k) developed.

Senator Morse explained in the legislative history, that while he was a member of the War Labor Board, one night, a very serious jurisdictional dispute occurred between two unions which resulted in a work stoppage.

Senator Morse stated that the War Labor Board called the unions together and they told him to get the men back to work or if they did not, the War Labor Board was going to appoint an arbitrator to settle the dispute.

Now, the only fair reading from this point of the legislative history is that the two unions got together and settled the dispute because there is somewhat of a gap there.

Senator Morse simply goes on to say, the men went back to work, but I think the only fair reading is that they got together, settled dispute then they went back to work.

But in any event, Senator Morse then goes on to explain that he decided, the War Labor Board ought to have a policy to avoid these situations in the future.

So, he proposed a resolution which became that policy, which said to the two unions involved, you have 24 hours to settle the jurisdictional dispute without economic action and if you do not, we are going to appoint an arbitrator to settle it for you and it is going to be binding on you.

And if he explained, he wanted to get the same incentive into the Act and that is why he proposed Section 10 (k), which was adopted, almost completely the way he proposed it.

There is only one deletion and that is that Senator Morse proposed that if the two unions, excuse me, if the parties in the language of the statute, could not agree upon a settlement of the dispute, the board could hear the dispute itself or the board could appoint an arbitrator to hear it.

The provision allowing the board to appoint an arbitrator was deleted.

It was deleted without comment in the legislative, in the conference, but we submit that we had a very clear statement from Senator Morse as to what the reason for Section 10 (k) was being put into the Act or being proposed.

Other legislators, Senator Murray, for example, also echoed his hopes, that this provision, Section 10 (k) would encourage unions to set up machinery, to settle jurisdictional disputes themselves before the governmental action was necessary.

In affect then, Congress established the scheme for the settlement of jurisdictional disputes which resulted in work stoppages, which we think is clearly discerned from the statute and the legislative history.

It has got four steps.

First, there is a jurisdictional dispute between two unions which results in a work stoppage.

Congress said that work stoppage is going to be halted by a 10 (l) injunction.

Second step; Congress proposed 10 (k).

It said in Section 10 (k), we are going to have an opportunity for the two unions to get together and resolve their dispute, the abstention provision.

Step three; if the two unions or labor groups cannot resolve their dispute themselves, then the NLRB is going to have to make a binding determination of that dispute, in a 10 (k) hearing.

Step Number four; out of the voluntary mechanism or out of the 10 (k) hearing before the board, one union will prevail.

One union will go back and deal with the employer, will negotiate.

Each will be able to use their own economic weapons at that point. Congress was not imposing substantive terms on either the unions or the employers.

Congress recognizes that what it wanted to do was to protect the neutral employer, the employer caught in the middle.

The helpless victim, between the two warring unions.

The legislative history beginning even with the house statements and the house report, all show the Congress was concerned about the neutral employer, the innocent victim of the warring unions, the helpless victim caught between these two unions and as Justice Black said in CBS, the employer who is caught between the devil and the deep blue, that was the interest that Congress was trying to protect.

That was its policy.

Of course, the employers may have a preference, but Congress did not grant in Section 10 (k) or 8 (b) (4), protection of an employer's economic interest.

Congress reserved that issue to the normal processes of collective bargaining and we submit that what the board is trying to do here is establish its own policy, as to the relative economic strengths between an employer and a union, dealing over work assignment controversy, but we submit that the board does not have that right when the Congress has laid down that policy.

Now --

Justice Byron R. White: The board (Inaudible) employer though that even if it settled the 10 (k), even if the board’s power is upheld in this case?

Mr. Donald J. Capuano: That is precisely one of our main arguments in support of our position that the board is not turning out its duty, simply for that reason that the board cannot force the employer to do anything and this employer can ignore the voluntary procedure that the two unions have entered into.

They can agree to the Joint Board or some other procedure.

The employer -- he does --

Justice Byron R. White: It would not be a problem here as one of the unions would obey the joint board?

Mr. Donald J. Capuano: Mr. Justice White, the policy or the rule that the board is following here is discouraging unions.

It is discouraging the employers from joining into these groups.

Justice Byron R. White: Is not that correct that if the Tile Setters would disclaim the work, the whole proceeding would be aborted?

Mr. Donald J. Capuano: Under the board Safeway doctrine, yes sir.

That is correct.

Justice Byron R. White: Well, then why does not the Tile Setters do it?

Mr. Donald J. Capuano: Because of the policy that the NLRB is following that we are trying to get reversed in this case.

Justice Byron R. White: I know, but the Tile Setters, what they are saying is that we did have a voluntary way of settling our dispute through the Joint Board, but we just would not comply.

Mr. Donald J. Capuano: They said that they would not comply because the employer is not bound and that we know that if the employer is not bound the NLRB --

Justice Byron R. White: I do not care for whatever reason that is, that the employers never bound, whether there is a hearing or not?

Mr. Donald J. Capuano: Well --

Justice Byron R. White: And that so, I do not know what kind of an argument that is?

Mr. Donald J. Capuano: The argument runs like this.

We will comply because the employer is not bound.

We know that if the employer is not bound to the voluntary adjustment, the NLRB will hold the 10 (k) hearing.

Justice Byron R. White: Then the --

Mr. Donald J. Capuano: So we --

Justice Byron R. White: The employers still would not be bound?

Mr. Donald J. Capuano: No, but we have a second bite at the apple.

Justice Byron R. White: (Voice Overlap)Nevertheless, the union is not complying with the Joint Board determination?

Mr. Donald J. Capuano: Absolutely!

Justice Byron R. White: And they -- if it did and disclaimed, there would be no 8 (b) (4) (D) and no 10 (k) proceeding?

Mr. Donald J. Capuano: That is correct.

Justice Byron R. White: Now, so what we really have here is a situation, where not only the employer has not agreed to the settlement, but one of the unions has done.

Mr. Donald J. Capuano: Only as a result --

Justice Byron R. White: Well, (Voice Overlap) if one of the unions, that the Tile Setters really would comply with the Joint Board determination --

Mr. Donald J. Capuano: Yes sir.

Justice Byron R. White: There would be no dispute here.

Mr. Donald J. Capuano: That is right.

Justice Byron R. White: The fact is, that they will not disclaim, they are still claiming the work and so they are -- there just is not any voluntary adjustment yet, even between the unions.

Mr. Donald J. Capuano: No sir.

We believe there was the voluntary adjustment, when they agreed to the Joint Board and the decision was issued.

They are only refusing to comply because they know they can get -- (Voice Overlap)

Justice Byron R. White: But they are refusing to comply, and they are still claiming the work?

Mr. Donald J. Capuano: Yes sir, but I think it goes somewhat in the circle.

If the board was not following the policy or rule which is an issue here, there would simply be no reason for the Tile Setters not to comply because they would know that the NLRB --

Justice Byron R. White: There would, oh yes, there would still be.

They can still refuse to comply and they could still strike, they could still get (Voice Overlap)M

Mr. Donald J. Capuano: Not if they lost as they did before the Joint Board.

They could not, that is the point I am making.

Justice Byron R. White: Why could not they?

Mr. Donald J. Capuano: Because the NLRB would then seek an injunction against them, presuming a charge is filed against them.

There would, once they know that they cannot get a second bite at the apple before the NLRB.

Justice Byron R. White: What would be their unfair labor practice?

Mr. Donald J. Capuano: Striking to force a change in the assignment of work contrary to a board order.

Justice Byron R. White: Well, it would not be contrary to a board order?

Mr. Donald J. Capuano: Yes, because the board order was the Plasters.

Now, with the employer --

Justice Byron R. White: I do not mean -- I mean the Joint Board, let us assume the Joint Board gave it to the Plasters, right?

Mr. Donald J. Capuano: Yes sir.

Justice Byron R. White: Now, the Tile Setters did not comply.

Mr. Donald J. Capuano: That is correct.

Justice Byron R. White: Now, if the board gives it to the Plasters --

Mr. Donald J. Capuano: The NLRB.

Justice Byron R. White: The NLRB?

Mr. Donald J. Capuano: Yes.

Justice Byron R. White: Gives it to the Plasters, then the Tile Setters are bound?

Mr. Donald J. Capuano: Yes, they are bound in the sense that if they strike.

Justice Byron R. White: They would be on an 8 (b) (4) --

Mr. Donald J. Capuano: Right!

Justice Byron R. White: 8 (b) (4) (D).

Mr. Donald J. Capuano: Yes sir, that is correct.

And the only reason they are refusing to be bound by this Joint Board is that they know they can get a second bite at the apple.

The employer refuses to be bound by the voluntary mechanism because he knows that he can wait to see how the voluntary adjustment will work out.

If his preference is not sustained there, then he knows he can demand a 10 (k) hearing before the NLRB and if his preferences is not sustained there, he can completely ignore both proceedings and goes his own way.

Justice Byron R. White: Really, what you are saying is that of course for this proviso to be applicable, you have to assume there is been a settlement or a message for settlement.

Justice Byron R. White: Well, the board with satisfactory evidence that they have adjusted or agreed upon method for a voluntary adjustment to the dispute.

Mr. Donald J. Capuano: That is right.

Then the board will hold the 10 (k).

The Board will dismiss the charge when there has been compliance with the adjustment, but as Judge Leventhal pointed out, the stability is maintained because during this period a 10 (l) injunction is in effect, which is obtained by the board as soon as the 8 (b) (4) (D) charge is filed.

So the whole scheme of the statute --

Justice Byron R. White: But you are saying what the board must do is to recognize the fact that there has been a voluntary adjustment here in a sense that if the Joint Board has determined the dispute.

Mr. Donald J. Capuano: Yes sir.

That is correct.

Justice Byron R. White: And that the board must recognize that one union is bound by it.

I mean both unions are bound by it?

Mr. Donald J. Capuano: Yes.

Yes, Mr. Justice White.

That is correct.

Justice William J. Brennan: Well, I gather they are not bound (Inaudible)

Well, I have been caught on the standard, I gather your argument is agreed upon methods of the voluntary adjustment.

Certainly they have agreed upon a method.

Mr. Donald J. Capuano: That is correct.

Justice William J. Brennan: And the disputes have been submitted to the Joint Board and just decide it --

Mr. Donald J. Capuano: Yes.

Justice William J. Brennan: -- and the looser refused to be bound.

Is that what that means that --

Mr. Donald J. Capuano: He refuses --

Justice William J. Brennan: Is that satisfying?

Mr. Donald J. Capuano: He refuses to --

Justice William J. Brennan: But what are the reason he does?

Is this provision satisfied merely because they have agreed upon a method?

Mr. Donald J. Capuano: Yes sir, it is.

The board in many cases has held that the Joint Board is a method for the settling of disputes.

Chief Justice Warren E. Burger: Then it is very effective then is it not (Voice Overlap).

Mr. Donald J. Capuano: It would be affective but for the rule of the board in this case Mr. Chief Justice because then there would simply be no reason for a union not to comply because it knew it was not going to get a second bite at the apple with the NLRB and with the record of the NLRB, we submit that the losing union before the voluntary procedure, many times is encouraged to seek the second hearing, before the NLRB where perhaps the employer's for reference would be held valid.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Capuano.

Mr. Gold.

Argument of Laurence Gold

Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.

In light of the excellence of the opinion below which sets out all the affirmative points upon the --

Justice William J. Brennan: It is always easy to say that as it was.[Laughter]

Mr. Laurence Gold: Yes.

Well, there are times that although it is --

Justice William J. Brennan: You thought you would not feel better --

Mr. Laurence Gold: Well, there are times of Mr. Justice Brennan, when an advocate is upset about the way he has won below.

He is been brought up here and he has the feeling that due to certain deficiencies in the opinion below, he wants to gut it, but I want to make it most emphatically clear that we are not in that position at this time.

We make a happy exception and we do most heavily rely on the opinion below which shows that all of the accepted indicia of ascertaining Congressional intent, the language and structure of the particular provision, the overall structure of the Act, the legislative history and this Court’s precedents all support our position.

Justice William J. Brennan: All which overrides (Inaudible)

Mr. Laurence Gold: We do believe so, 13 years --

Justice William J. Brennan: That is the fact that --

Mr. Laurence Gold: Well, it is been 10 years.

Last time, it took 13.

Last time, it was unanimous opinion of this Court which overrules was 13 years of administrative action which the board claimed, had amalgamated each reading.

Justice Byron R. White: What case was that?

Mr. Laurence Gold: CBS sir.

Justice Byron R. White: What is your view of why this abstention provision is triggered here where a union has apparently agreed upon a method for settlement, but then repudiates it is entire undertaking and still insists on having the work?

Mr. Laurence Gold: Well, what we --

Justice Byron R. White: Why then, is this abstention provision triggered when not even one of the unions or once -- one of the unions has been agreed on the affect?

Mr. Laurence Gold: As we read the statute Mr. Justice White and the language is on page 3 of the board's brief, I guess that is what we have all been referring to.

Justice Byron R. White: Yes.

Mr. Laurence Gold: The board is instructed to the differ when it receives satisfactory evidence that they, the parties have adjusted or agreed upon methods for voluntary adjustment of the dispute.

The statute does not really say that they are has to be adjustment which leads to a disclaimer.

That is one situation, and that is the situation, which the board recognized --

Justice Byron R. White: I agree but apparently one of the unions is not only repudiated this agreement to abide by the adjustment but they had repudiated the method of adjustment?

Mr. Laurence Gold: Well, if no, they have not repudiated the method.

They have said that in life, they have the work in their hands and they say, they are not going to disclaim and leave it alone if this --

Justice Byron R. White: But we were still going to claim the work regardless of the method that we previously agreed on, which seems to me a repudiation of the entire procedure?

Mr. Laurence Gold: Well, I do not think so because it maybe repudiation but it is one that is correctable in light of -- we believe in light of Section 301 which applies to agreements between the unions.

But what you have this --

Justice William J. Brennan: You mean the Joint Board determination pursuant to the agreement to submit to the Joint Board would be enforceable (Inaudible)

Mr. Laurence Gold: Yes, I believe, so it is an arbitrary award.

There is a Seventh Circuit decision involving a textile work.

Justice William J. Brennan: Then is that (Inaudible) an agreement?

Mr. Laurence Gold: Yes, there are.

There are.

Justice Byron R. White: An agreement between two unions?

Mr. Laurence Gold: Yes, there are, there are decisions holding that agreements between unions to submit this type of dispute to arbitration or an enforceable --

Justice Byron R. White: Why is not that kind of an issue then -- why is not that kind of an issue I thought for one, for the court enforcement?

I mean that, that the --

Mr. Laurence Gold: Well there are --

Justice Byron R. White: I mean the end result of such an enforcement proceeding to be a disclaimer?

Mr. Laurence Gold: Well, it would be but then you have problems of -- well, it would be, it would be a judicially required disclaimer, but what you have Is as long as the board continues on its policy of not recognizing the award, you have a practical point.

The unions which prevail before the Joint Board is barred from -- is barred unless -- is barred from using economic force.

Justice William J. Brennan: Tell me, if the union has prevailed may result to be awarded.

It is the only part of the agreement which result to the award.

Mr. Laurence Gold: Yes.

I think so; the party that prevailed would be --

Justice William J. Brennan: In this instance, only the Plasters --

Mr. Laurence Gold: That is correct.

They would be the only one with an interest.

Justice William J. Brennan: Then the employer could.

Mr. Laurence Gold: No.

Because he would not be a party.

Now, there are, I mean there are situations in which employers are a part of a mechanism and as Judge Leventhal pointed out in his decision where that happens and everybody is in and the whole matter is resolved but the statute in 10 (k) is only designed to regulate the use of economic force in situations where there has been a dispute which is ripe being to a jurisdictional strike.

At that point under Section 10 (l), the board comes along and gets some injunction.

It then holds a 10 (k) hearing.

At the 10 (k) hearing, it determines which union is to be allowed to use economic force, that is what the statute does.

It is throwing out the inter union dispute in that as Mr. Capuano put it, stating which party will come back, will be allowed to use economic force, that is the only affect and that is why we think the government’s argument that 10 (k) is meant to settle jurisdictional strike is wrong.

It is not; that is the exactly the argument that was made in CBS.

That because the employer is not affected by the 10 (k) award, they have to give the work to the union that the employer wants to give it to, but that is not the point of the statute.

This part of the statute as all the other parts are consistent with what this Court has emphasized from Insurance Agents through a American Ship and most recently in HK Port, that way you have an economic issue, the parties would have worked that out.

And therefore, Congress in line with the whole scheme with 8 (b) (4) (D) as you point out Mr. Justice Brennan in National Woodwork, only protects employers in the position of neutral.

We are not arguing here that the employer does not have a preference, as a matter of fact; this is not a fact question.

We recognize that employers may have a preference, as a matter of fact, but the only thing that has been protected is their interest in being free of the conflicting claims of disputing unions.

There on --

Justice Potter Stewart: That of course is the question before us, is it not?

Mr. Laurence Gold: Well, we believe as I said, Mr. Capuano has tried to spell out our affirmative arguments and as I say, we think they have also been spelled out fully by the Court below.

I am saying that we believe that everyone of these indicia points out, points to the fact that employers in the positions of neutrals that the interest in neutrality or the interest of being free of competing claims, is the only one protected and as I say, we rely on the language of Section 10 (k) which would be nonsensical since it talks about compliance with the award if parties included employer.

It is shown by the whole structure of 10 (k) which only deals with the use of economic force.

It is shown by the whole structure of the Act which says that except when an employer is in the possession of a neutral economic matters between the -- and union had to be settled by the parties through economic force.

And it is shown by the legislative history, which is indicated at page 16 of our brief where every comment made was indicated that Congress was focusing on the situation of an employer who is a helpless victim, who is caught between unions and there is not a single indication, and we believe you would need the strongest indications in light of the whole structure of the Act.

There is not a single indication, that this was a provision to pull the economic chestnuts out of the fire of an employer who had a particular preference.

Justice William J. Brennan: Mr. Gold, I gather your whole argument really comes down before (Inaudible) that in this case, there was a method --

Mr. Laurence Gold: Yes sir.

Justice William J. Brennan: -- and that is if there exists an agreed upon method that in this case?

Mr. Laurence Gold: Yes.

Justice William J. Brennan: That is whether or not the method is in fact employed, both setup should employed it all?

Mr. Laurence Gold: No, I think that the parties have to --

Justice William J. Brennan: They at least have to employ, is that it?

Mr. Laurence Gold: Yes.

You have to get satisfactory evidence that they have adjusted or agreed upon methods.

Justice William J. Brennan: As had agreed upon method, but it must be at least employed by this?

Mr. Laurence Gold: Yes.

I think somebody would have to make a claim in the process of getting a decision.

Justice William J. Brennan: Yes, but do you stop should, that is as far as (Inaudible).

That is resorted to the Joint Board decide it and the losing unions repudiates the agreement and you say that is immaterial, nevertheless, as far as the statute is concerned, the board has no jurisdiction?

Mr. Laurence Gold: Right, because at that point, there is a method of assuring the statute provides method.

Again as Judge Leventhal points out that the statute provides a method of assuring that the employer will not be caught between those two unions.

The losing union can be subjected to the judicial, can be brought to a judicial tribunal, to correct it is -- it is the error of its way.

Justice Byron R. White: The board's answer is that there is another party, but the employer, but if the board, even if the employer is a party, dismisses the proceeding, when there is a disclaimer, I would think you would say, or what you do, I take it that when there is a binding method agreed upon, the board should recognize that it is binding on the parties, and it should be therefore, given to a disclaimer.

Mr. Laurence Gold: Right.

Our argument is very simply, is that when the board --

Justice Byron R. White: I mean even if the employer is a party?

Mr. Laurence Gold: Right.

We were saying that where the board under its so called Safeway doctrine dismisses on a disclaimer, it is giving effect to the language that the parties have adjusted and we are saying what they are failing to do here --

Justice William J. Brennan: And then you wind up by saying that it is not to the board that would assist order to bring the repudiating union in line.

It is either as some other method that is --

Mr. Laurence Gold: Correct!

Justice William J. Brennan: Under 301 or I take it a state proceeding?

Mr. Laurence Gold: Well, I would think it would be 301, but I would point out that the board plays as a rule and they admitted in footnote 21, what happens is, if you have a repudiating union, that union cannot utilize economic force because the board treats its order dismissing the proceeding or quashing the hearing as a board order and treats the loosing union as if it is lost before it, and if that losing union ever tries to use economic force, it will get a 10 (l) injunction against it.

Justice William J. Brennan: It will have to be a new proceeding?

Mr. Laurence Gold: No.

They would go and that would be in 8 (b) (4) (D) charge against that union, the losing union.

Justice William J. Brennan: Arbitrary?

Mr. Laurence Gold: Yes.

Justice Byron R. White: But why?

If that is not there, it could not be strike in contrary to an order, it is just a dismissal on the grounds that there is no longer the basis for a 10 (k) proceeding?

Mr. Laurence Gold: Well, as I say, the board takes the position because I think and I think it has to because the whole purpose of the statute would be undermined that the dismissal is the equivalent of an order and that somebody who -- a union which strikes after a dismissal on the ground that there has been a settlement, is striking contrary to a board order because the whole purpose as Senator Morse explained as we note in the introductory section of our brief, the whole problem here have prior to 10 (k) was it they were meant union method of settlement which Congress wanted to encourage but which did not work where the -- where a union had a great deal to lose.

They would defy the tribunal that was before 301 as well, since it was in 1947.

Justice William J. Brennan: Had there ever been a 301 proceeding on board's (Inaudible)?

Mr. Laurence Gold: There are some 301 proceedings pending as I, as --

Justice William J. Brennan: Everyone and anyone come (Inaudible)

Mr. Laurence Gold: I am not aware that any has come to decision.

I would point out as I indicated that on the -- in the brief in our position, the case of textile work, United Textile Worker versus Textile Union of America.

258 F. 2d 743 is cited and that is the case holding that an arbitration to decide a dispute between two union is enforceable under 301.

But if I started to, and just the conclude the thought I was on, the whole theory of the statute would be undermined if an order quashing a hearing was not an order for the purposes of 8 (b) (4) (D) because as I started to say, you had unions which would not comply because it hurt too much.

Then we would try to use economic force and the whole purpose of 10 (k) is to put a final spur into a -- is to give an impetus to compliance by taking away the right of a losing union, to use economic force and once that is taken away, that union is in –

Justice Byron R. White: But when there is a disclaimer and the Safeway doctrine is applicable and the proceeding is dismissed, is that dismissal order the -- would the dismissal order be a basis for a charge?

Mr. Laurence Gold: Yes, Your Honor.

Justice Byron R. White: If the Union repudiated the disclaimer?

Mr. Laurence Gold: Yes, Your Honor.

That is the law cited on footnote 21 of the board's brief and I just -- I would just note again in conclusion that the striking thing about the the board's presentation is that it makes no affirmative arguments, there are -- it does not point to a single basis in the statute.

Every argument is based on the notion that the employer has an economic interest and our answer to that is, that was not a protected interest that as so for as Congress was concerned.

Chief Justice Warren E. Burger: Thank you Mr. Gold.

You have four minutes left for rebuttal Mr. Come.

Rebuttal of Norton J. Come

Mr. Norton J. Come: I think that when all that is said on the other side, we come back to what in our view is really the simple question here, namely whether or not in view of the vital interest that the employer has in the resolution of a jurisdictional dispute plus the fact that Congress was interested in having these disputes settled in the public interest.

It is reasonable to assume that Congress, although, it was perfectly willing to encourage the unions to try to adjust these matters short of economic pressure, intended that when you got down to the nitty-gritty of being unable to resolve the matter and having pulled in the employer through economic pressure, Congress could have intended that there would be a binding settlement that would exclude the interest of the employer.

After all, certainly it seems rational to believe that if there is going to be a final and binding resolution, it is going to be --

Justice Byron R. White: (Inaudible) is not binding on employer?

Mr. Norton J. Come: Well, it is binding in all -- for all practical purposes because the employer is not at all going to a stand up under the economic pressure of a picket line or a strike.

There is a weighty compulsion on him to comply with the award.

Justice William J. Brennan: Do you agree Mr. Come, was the Joint Board award since it goes vested on principle on the filling?

Mr. Norton J. Come: I think that, that is an open question, Your Honor.

I think that there is one case that is cited where they tried to enforce it against the employer and the court refuse to do it on the ground that since he was not a party, it could not be enforce against him.

There are a couple of cases in the lower courts that have enforced it against the two unions, but what does that mean?

That still does not compel the employer to reassign the work or as under our setup, he would be subjected to economic pressure or a –-

Justice William J. Brennan: What I am suggesting is that the court (Inaudible)

Mr. Norton J. Come: Well –

Justice William J. Brennan: It does say that the (Inaudible).

Mr. Norton J. Come: No, that is correct Your Honor, but –

Justice William J. Brennan: As intended but they also thought of remedies, I suppose?

Mr. Norton J. Come: Well, I think that is the basic problem and I think that you do not get an answer to this from the legislative history because as is often the case, the problem that comes up is one that was not directly focused on.

So you have to bring up there we believe the realities of the situation and the big reality here is the employer's economic increase in the matter and certainly it is a phone-book rule of law, if you do not make, I do not want to use the word binding because this is not binding in the technical sense, but you do not make a substantial decision, that it is going to affect the interest of a party at least in the way that the employer's interest is affected here by being subjected to the picket line.

How did at least letting him be heard.

Furthermore, since this is to be settled, I will finish it in a moment Your Honor, in the public interest, you want a proceeding that is going to ensure that it will bring out all factors, including factors of economy and efficiency of operators and when the employer (Voice Overlap)

Justice William J. Brennan: I could not agree with you more, but the Congress legislated otherwise, I suppose that the Congress could put it in order?

Mr. Norton J. Come: That is correct Your Honor but as I say one of the tools that we believe has to be brought to bear here is the economic realities of the situation which we submit Congress could not have been blind to.

Thank you.

Justice Potter Stewart: So your basic argument, at least at the superficial level of a semantic statutory construction is simply that party, the parties to such dispute includes or may include the employer?

Mr. Norton J. Come: That is correct.

Justice Potter Stewart: And the Congress did legislate, just the way you said it?

Mr. Norton J. Come: That is correct and that is even if you interpret dispute as the court below interpreted, it is not central to our argument that dispute has to be the dispute over the jurisdictional strike.

We think that -- because even if it is only the dispute over the work assignment, the employer is a party to that.

At least that the point where he is not willing to go along which he certainly was not willing to do in this case.